HARI SINGH Vs. SRINGAR KANWAR

JUDGEMENT

(1.) THIS first appeal, at the instance of Hari Singh son of Shri Berisal Singh (adopted son), is directed against the judgment and decree, dated March 2, 1966, passed by learned Senior Civil Judge No. 2, Jaipur City, in Civil Original Suit No. 48 of 1959/44 of 1960, whereby the learned Judge, after deciding issue No. 8 in favour of the defendants, dismissed the suit.

(2.) THE facts giving rise to this appeal are that Hari Singh, son of Shri Amar Singh, was taken in adoption by Shri Berisal Singh and his wife Smt. Sringar Kanwar defendant No. 1 on December 24, 1943 and a deed reciting the ceremonies and the terms of adoption was also reduced into writing on the same date. On May 14, 1947, Berisal Singh, by a will registered on May 15, 1947, transferred some properties to defendant No. 2 Chander Singh, defendant No. 3 Bhanwar Bai and defendant No. 4 Gopi Singh and rest of the properties to defendant No 4 Gopi Singh and rest of the properties to defendant No. 1 Smt. Sringar Kanwar. On January 3, 1944, a gift deed was executed by Berisal Singh in favour of Chander Singh defendant No. 2. On October 10, 1947, Berisal Singh (adoptive father of Hari Singh appellant) expired. On January 16, 1949, defendant No. 1 Smt. Sringar Kanwar mortgaged some of the properties to defendant No. 6 Bhanwari Lal, defendant No. 7 Radha Gopal and defendant No. 8 Radha Govind, who brought a suit for sale of the mortgaged property, which was decreed and in execution of that decree the mortgaged property was purchased by mortgagees on March 18, 1955. On June 29, 1954, Smt, Sringar Kanwar executed usufructuary mortgage-deed in favour of defendant No. 9 relating to other property.

(3.) ON the pleadings of the parties the trial Court framed only seven issues on March 3, 1962 and directed the plaintiff to produce evidence regarding those issues. It was also mentioned therein that other issues would be framed later on, if necessary. ON an application, filed by the learned counsel for the plaintiff after hearing the arguments, an additional issue No. 8 was framed on April 14, 1962. The additional issue reads as under : - "8. Whether the subject-matter of issue No. 1 was directly and substantially in issue and tried and decided in the former suit between the plaintiff and defendant No. 1 and 52 and so it is res judicata and cannot be re-tried in this suit ?" ON the above noted issues the parties were put to proof. While the evidence was being recorded on behalf of the plaintiff, the defendant submitted a copy of the judgement and decree, dated August 5, 1965, passed by this Court in S. B. Civil Second Appeal No. 741 of 1959. Learned Senior Civil Judge, after hearing the parties, held that the entire controversy between the parties was set at rest by the judgment of the High Court. The learned Judge further held that Hari Singh was recognised as adopted son of Berisal Singh, but his right to the properties of Berisal Singh stood postponed till death of Smt. Sringar Kanwar. It would thus be clear that so long as Smt. Sringar Kanwar defendant No. 1 was alive, plaintiff Hari Singh has no locus standi to bring any suit with regard to the properties of Berisal Singh of which Smt. Sringar Kanwar was the owner. With these observations he decided issue No. 8 in favour of the defendants and dismissed the suit. Hence this first appeal.